If the
public’s understanding of the Constitution’s nature was wildly unsettled during
ratification, what would that mean for constitutional interpretation today?
Jonathan Gienapp explores this possibility in The Second Creation, arguing that the essential character of the
U.S. Constitution was initially undetermined. Many of the former colonists
(consciously or unconsciously) held preconceptions about how constitutions
worked due to their experiences with the largely-unwritten British
constitution. Yet, the U.S. Constitution was a different sort of creature, set
forth at once in a single, written document. Although American constitutional
practice quickly became document-centered, expectations about how the
Constitution would function were initially more varied.

Gienapp’s
historical point is straightforward, and yet his argument that the Constitution
was not initially considered “fixed” is almost difficult to grasp because
presumptions of constitutional fixity are so strong today. Not only today’s
originalists, but also living constitutionalists, understand the Constitution as
“a written, discrete, inert, historically conceived object composed of words,
contained on parchment, and enforced by judges.” (p.326) Our values are not our
constitution; our norms and historical practice are not our constitution.
(While parties certainly cry foul when norms are violated, they usually still
easily distinguish between a norm violation and a constitutional one.) The
document that we call the Constitution is our constitution. Even for most
living constitutionalists, if constitutional law changes over time, it is still
generally conceived of doing so because the
document that is the Constitution has been or can be reinterpreted or
reconceived in light of changed circumstances or values. Practice and
expectations alone that are wholly external to the document can’t become the
Constitution, no matter how important or universal they become.

Gienapp’s
thesis thus raises the striking question of whether originalism would invite Americans
to engage in a more British-style constitutional practice in the present. This
is an especially curious possibility for present-day American practitioners and
scholars, largely because very few are deeply familiar with the functioning of
the British constitution in the late 1700s.

There
are certainly some tempting responses to the concern that the American constitution
might extend beyond the four corners of the written Constitution. For one, the
fact that the first Congresses came to rely so heavily on document-based
arguments so quickly suggests that most everyone had been committed to constitutional
fixity all along, consciously or unconsciously. But that reality doesn’t prevent
The Second Creation from calling into
focus a veritable “Chevron step zero” of American constitutional
interpretation: the question whether we must necessarily situate constitutional
inquiries in the written Constitution at all, or whether we may (or must) resort
to other modes of analysis that would have been acceptable (or required) under
the British constitution.

An
originalist might approach this threshold question in the same manner that they
would approach a more particular application of the Constitution: by first
looking to how the founding-era public would have understood the country’s proposed
plan of government. As I’ve argued in Diverse Originalism, originalism needs to consider
how the entirety of the founding-era public would have understood the
Constitution, even and especially when there was a diversity of views among
different demographic populations. If present-day interpreters want to
understand what sort of government was created at ratification, they need to
understand what the public believed was being ratified. If a sizeable
percentage of the public (including, according to Gienapp, James Madison and
many other federalists) initially presumed the Constitution would function like
the British constitution, then a British-style constitutional system is among
the possible candidates for the kind of government the public was asked to approve.
Of course, the antifederalists presented another understanding of the
government’s essential character — one more text-centric, which has more
or less prevailed over time.

Rather
than evaluate which perspective was more justified, it may be more useful to consider
what it would even mean to take seriously the possibility that America’s
Constitution (or constitution) would have the flexibility of Britain’s. Gienapp
describes the British constitution as “written compacts, like Magna Carta,” and
other “authoritative” texts, “blended seamlessly into a complex, dynamic whole
defined as much by custom, history, and constitutional practice.” (p. 22) “The
British constitution was fixed and constant, yet because it was inherently
customary and discoverable through usage and acquiescence, it was perpetually
changing.” (p. 34).

Gienapp’s
description of the British constitution describes a system that is changeable
but still bound by custom, history, and practice, as well as text. And when we
look forward in time from ratification to the Congressional debates about
executive branch removal, the Bank of the United States, and the Jay Treaty, we
see how America’s custom and practice concerning our own constitution developed
to situate constitutional questions within the written Constitution, arguing
that even wholly unwritten powers or limitations were implied by the text
itself. That reality is not only our custom and practice, but now is also our
history. Under the British constitution’s own terms, it can be thought of as
having evolved into the American constitutional system.

Entertaining
the notion of a British-turned-American system might produce some anxiety among
present-day interpreters who are committed to the fixed Constitution. If once
the small-c constitution turned into the capital-C Constitution, then perhaps it
could change again. But there are two reasons not to worry that America’s early
relationship with the British constitution will catalyze unmoored constitutional
change.

First,
the possibility of future change is, descriptively, no more likely than it
would be if the fixed constitutional approach had been absolute from the
beginning. Maintaining fidelity to a particular constitutional practice is
always work. Polarization, cultural shifts, and even apathy can change a
constitution in practice. Regardless of the certainty and legitimacy of its
origins, for a government to function as a matter of fact, it also must be
accepted as legitimate in the present. As Edmund Burke said of the British
constitution, “Our constitution is . . . a choice, not of one
day, or one set of people, not a tumultuary and giddy choice, it is a
deliberate election of the ages and generations.” (p. 29) Regardless of how any
particular constitution was created, fidelity to that constitution is an
ongoing choice. If few people choose to be faithful to it, a constitution will
mutate or decay. That remains true of the American Constitution, whether it
came into being fully formed or matured shortly after ratification.

Second,
even though constitutional practice can change, texts have a way of drawing
people back to them — at least when they purport to instantiate
commitments to important values, such as liberty, equality, and wise governance.
As H. Jefferson Powell explained, “Just as in scriptural religion, the most
elaborate and established theological system can be challenged by the call ad
fontes (‘back to the sources’); so in American constitutional law it is also
possible to go back to the text, to challenge what currently is[,] in the name
of what once was written.” H. Jefferson Powell, Parchment Matters: A Meditation on the Constitution as Text, 71 Iowa L. Rev. 1427, 1433 (1986). Even
Madison eventually agreed that enumerating rights would “impress some degree of
respect for them, to establish public opinion in their favor, to rouse the
attention of the whole community. . . . Political truths
declared in a solemn manner acquire by degrees the character of fundamental
maxims of free Government, [especially] as they become incorporated into the
national sentiment.” (p. 175-176)

In
Gienapp’s epilogue, he writes that it was “a contingent set of practices” which
made it possible to imagine the Constitution as a fixed document. “Once it is
appreciated that an entirely optional set of norms made this conception of the
Constitution, . . . it will cease to make sense to search for
any essential set of constitutional practices that could have been hardwired
into the Constitution.” (p. 334) Yet, while it is certainly conceivable that
British constitutionalism could have prevailed, or some other constitutive
practice, the reality that American practice shifted so quickly to arguing with
text suggests that each possibility didn’t have an equal chance of success. The
draw of the text was simply too powerful to ignore. A fixed Constitution ultimately
may not have been absolutely necessary, but it turns out that it was decidedly
convenient.

Christina Mulligan is Professor of Law at Brooklyn Law School. You can reach her by e-mail at cmulligan at gmail.com